by Derek W. Black, Professor of Law, University of South Carolina. Originally published at The Conversation

A new fight to secure a federal constitutional right to education is spreading across the country. This fight has been a long time coming and is now suddenly at full steam.

In 1973, plaintiffs in San Antonio Independent School District v. Rodriguez argued that school funding inequities violated the right to education. The Supreme Court rejected education as a fundamental right under the federal Constitution, leaving funding inequalities in Texas and elsewhere completely untouched. For more than 40 years, no one even dared to directly challenge Rodriguez’s conclusion in court. Now, in just two years, four different legal teams and plaintiff groups have done just that. But this time, they are shifting their arguments away from just claims about money. They are focusing on educational quality, literacy and learning outcomes.

The boldest claim was filed on Nov. 29 in Rhode Island, arguing for an education that prepares students for citizenship – an argument that draws directly on my own legal research and expertise as a scholar of education law.

When plaintiffs filed the first two cases in Detroit and Connecticut in 2016, the Supreme Court was set to shift significantly to the left. Hillary Clinton was a strong favorite to win the presidency and fill the vacancy created by the death of Justice Antonin Scalia. What looked like perfect timing for plaintiffs in mid-2016 turned awful a few months later when Clinton lost. The questions now are why plaintiffs, including new ones, continue to press forward and whether they have any chance of winning. The answers lie in a strange and tangled confluence of events that include school funding shifts, new legal theories and evolving cultural challenges.

Steep Declines in School Funding

Schools’ real-world problems are first and foremost driving the litigation. Detroit’s schools, for instance, are among the most segregated, lowest performing and most financially strapped in the country. The net result, plaintiffs allege, are schools where “illiteracy is the norm.” Detroit’s problems, while severe, are not entirely unique. Public schools nationwide are suffering from increasing segregation and a decade of steep funding cuts.

State tax revenues have been up since 2012, but most states continue to fund education at a lower level than they did before the 2008 recession.

While many state supreme courts allow students to challenge educational inequality and inadequacy, about 20 do not. The courts that bar such challenges say that educational opportunity involves issues beyond their authority to tackle. So children’s right to challenge educational deprivations sadly depends on where they live. Michigan, Mississippi and Rhode Island are three of the states where kids have no recourse in state court. This explains why three of the four new lawsuits are in these states.

A Novel Approach

Whether these cases succeed, however, depends far more on the legal theories behind them than egregious facts. The Rodriguez ruling rejected the fundamental right to “equal” education. Plaintiffs in Michigan and Connecticut assert a fundamental right to “adequate” education, not equal education. More specifically, the plaintiffs call it minimally adequate education in Connecticut and literacy in Michigan. Earlier this year, the lower courts in those cases rejected the notion that this nuance was significant and held that kids do not have a federal right to those things either.

The case just filed in Rhode Island seeks to avoid that trap by doing something completely new. It focuses on the civics knowledge and skills that our democratic form of government demands of citizens – a topic with deep historical roots. My recent research demonstrated that our founders intended public education to be a core aspect of the “republican form of government” that our federal Constitution demands.

Our republican form of government began as an experiment in the idea that everyday citizens could govern themselves. But our founders – people like George Washington, John Adams and Thomas Jefferson – emphasized that public education was necessary for those governments to work. In legislation that would dictate how the western territory would be divided up and later become states, Congress in the Northwest Ordinances of 1785 and 1787 mandated that each township reserve a central lot for public schools and that the states use their public resources to “forever encourage” those schools.

The most explicit evidence of education’s necessity comes from Southern states’ readmission to the Union following the Civil War. Congress forced all the Southern states to provide for education in their state constitutions and explicitly conditioned the readmission of the last three states’ on those states never depriving students of the education rights they had just extended to citizens.

Congress was not acting arbitrarily. The Constitution requires Congress to “guarantee” a republican form of government in the states. The South’s criminalization of literacy among blacks, refusal to create school systems for middle-class whites, and general failure to operate a government that looked anything like democracy only reinforced the wisdom of the nation’s founding ideas. Following the war, Congress took decisive steps to correct the South’s failures in education and give full meaning to the constitutional idea of a republican form of government.

Prospects for Federal Right to Education

Whether this history will serve as the key to unlock the right to education for today’s generation is uncertain. Regardless of the merits of these cases, Donald Trump’s nominations have made the Supreme Court more conservative. Yet, recent political cycles have also exposed weaknesses in America’s democracy and the need for a better-informed electorate, as everyday citizens struggle to make sense of highly polarized political debates, fake news and conflicting media accounts.

Public education cannot solve democracy’s challenges by itself, much less do so in a short period of time. The challenges are far too large. But if the nation is to secure a meaningful long-term solution, it will be through the same strategy as the founders.

They long ago warned in letters, presidential addresses to Congress and other official acts that the strength of our democracy would depend on public education cultivating the skills of citizenship. Public education was to be the fuel that makes democracy work and the only sure guarantee that those controlling government will preserve rights and liberties, rather than trample on them. Put that way, the federal right to education may be a moonshot, but it is one the plaintiffs in these cases cannot afford to miss.

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13 comments

I don’t see this SCOTUS extending Federal mandate beyond K-12. And I don’t see popular support for reform is education isn’t taken out of the partisan political gambit. On the latter I am pessimistic. Republicans don’t want to fund future Democrats or vice versa. And our colleges have entered a new era of controversy a decade ago.

What a notion. That the constitution would require a decent education for children, so in fact they can grow to become capable and invested adults who can participate in our Republican form of democracy.
that sounds like a no brainer. Let the feds pay for all schools, so they can be properly and equally funded, These are america’s children right. our posterity. those who will lead the country in the future.Just pull a couple of hundred billion out of the defense budget. There will be a lot more bang for our buck, if we invest in children, than graft; I mean bombs.
But really, isn’t that the point. we can’t have an educated voter.. our current form of government,kleptocracy; would suffer. Who would be the dweebs to vote republican or democrat. We would have a bunch of independents actually learning about the issues and voting accordingly.
We can’t have that now… come on.And I am damn sure nobody in our current supremely dysfunctional court is going to mess up the graft cart now.
As an aside, with monetary reform, paying for education could be first on the list with single payer healthcare. We can create our money, as someone else does for us now, but without the resulting debt, and with those newly created dollars we could fund PROPER ideas like these.instead of wall street banks and market manipulators,aka…. the fed.

I agree that good public education is a core part of a functioning Republic. I disagree with what I feel to be an implied assumption in the article–that parents play a secondary role to the state in educating children. Education only works when children come to school ready to be polite and cooperative, but a family member’s and a close family friend’s experiences as teachers have taught me that one cannot assume this baseline.

Not all problems can be solved by the state, but my sense is that it is a current liberal assumption that somehow better public education can resolve deeper social ills with 7 hours of (sometimes wholly disregarded) instruction.

In short, I suppose what I am saying is that I suspect schools end up in a similar situation to the police. Just as the police have now become the frontline contacts with the mentally ill, teachers are now supposed to compel basic behavioral discipline as well as teach civics and reading. In other words, we are outsourcing parenting functions to the schools. In both cases society is asking too much of these specialized types of civic servants.

I suppose that the only reason that the Founders didn’t put something about education n the Bill of Rights was because it was so blatantly obvious that there was no need to. Little did they suspect! When I read about how the educational levels of a backwater Mississippi town a century ago were equivalent to what a high class university offers today, you can see that children are no longer regarded as long-term investments for that society but a sort of cost of doing business. Give a couple of generations and average Americans may have to start bringing back the idea of Irish hedge schools again-

The founders did not need to put a right to education in the Constitution because it was already part of the social fabric. The Protestant expectation that all believers could read the Bible meant that education was valued, and my understanding is early Americans had something like the highest literacy rate in the world.

However, the state was not heavily involved–what mattered was society valued education. Society currently does not seem to place the same value on education and also seems to be to place little value on decent social behavior. Hence, I don’t know that more state action will change anything in the aggregate.

A good approach for education might begin with Paulo Freire’s “Pedagogy of the Oppressed.” In it, the whole purpose of education is key and not what we are now doing in schools throughout the US. An educated, critically thinking people is necessary for democracy, and Freire’s book points to a pedagogy that makes that the thrust of education.

From Wikipedia: Freire defines critical consciousness as the ability to “intervene in reality in order to change it.” Critical consciousness focuses on achieving an in-depth understanding of the world, allowing for the perception and exposure of social and political contradictions. Critical consciousness also includes taking action against the oppressive elements in one’s life that are illuminated by that understanding.

…the strength of our democracy would depend on public education cultivating the skills of citizenship. Public education was to be the fuel that makes democracy work and the only sure guarantee that those controlling government will preserve rights and liberties, rather than trample on them.

But oligarchs have little use for democracy except as a facade, so we can be pretty sure that the looting and consequent dismantling of public education will continue unabated.

The entire premise of the author’s article and his facts are designed to obfuscate the fact that the SOVEREIGN STATE (not the Federal gov’t) can do as it pleases…and the only entities it has to answer to are STATE VOTERS…..not education reform advocates in Washington DC or elsewhere in the country. Those States who spend the least on public education on a per pupil basis has DELIBERATELY USED THEIR POWER OF CHOICE to de-emphasize education in order to fund other priorities or to not tax citizens as high as others. If people (parents/teachers/etc) in those states are dissastified and can’t convince STATE legislators to listen to them….there are 49 OTHER STATES they can move to who might be more receptive. Then the STATE will see what the logical consequences are of the policy choices they inact.

Each STATE is its own petridish of ideas and governance….as it was designed in the U.S. Constitution…where all powers not specifically enumerated in the Constitution were reserved for the STATE. Show me where in the Constitution it EXPLICITLY gives the Feds ANY POWER to regulate education. The clause about GENERAL WELFARE didn’t do it….as the practical example of the Founding Fathers definitively proves….as education was NEVER contemporaneously covered by that phrase…..and only activist Courts allowed the creep of federal gov’t assuming unenumerated powers 170 years later in response to the Civil Rights movement.

The Rev Kev above indicates that it wasn’t included in the Constitution since it was TOO OBVIOUS….a blatant attempt to rewrite history to justify a baseless supposition. The only kids schooled in colonial days were predominantly the upper class and some of the merchant class (middle class). Most lower class adults (and slaves) couldn’t read or write….nor did they need it much given the type of economy they had (agricultural, limited manufacturing, hunting)….and they of course made up most of the population.

Yes…certain religious groups did provide more education (particularly in parts of New England)….but that was a RELIGIOUS group….distinct from the STATES (in most cases….)